1991S C M R 2504 (PLP)

SHAFIUR RAHMAN, J.

Leave to appeal was granted to examine the following questions-.-- (i} Whether a change brought about in the Revenue/Settlement Record without any authority of law whatsoever could affect adversely the rights of those earlier entered in the Records as having interest in the land? (ii) Whether at the stage of hearing and disposing of a revision petition the High Court could record the statement of a witness and base its decision on it?

2. In the Settlement Record of 1877-78 of village Naryab, Tehsil Hangu, District Kohat, a large tract of land was shown as the shamilat of village Naryab. In the subsequent settlement of 1903-1904, a part of the aforesaid tract was described as the shamilat of three newly-created revenue estates of Mir Khan Kalay, Ghalu China Kalay and Shamsuddin Kalay. It from that stage ceased to be a part of shamilat of village Naryab. This has continued so since 1903-04 Settlement. In or about 1956, the Forest Department wanted to disburse the income derived from the sale of mazri (a grass) on such shamilat land. The owners of the three Kalays laid claim to it. So did the owners of Naryab. The Forest Department instead of adjudicating on the compacting claims referred the matter to Civil Court. The owners of the three Kalays approached tile Civil Court in 1959 for a declaration of their rights and an injunction against the owners of Naryab denying them any interest in the same. The basis of their claim was the uninterrupted, consistent entries of the Revenue record since 1903-04. The suit was contested and initially the following preliminary issues were framed:

(1) Whether notice under section 80, C.P.C had not been properly served on the Provincial served on the Provincial Government and if so, what was its effect? (2) Whether the Provincial Government had not been properly sued, if so, its effect? The learned Senior Civil Judge by his judgment dated 21-5-1959 decided both the issues against the plaintiffs and rejected their plaint.

3. The second round of the same litigation was started by instituting a fresh representative suit on 2-1-1960 after serving the Collector with the notice. This suit was also contested and the following issues were framed on the basis of the pleadings of the parties:

"(1) Whether the suit was within time? (2) Whether notice had not been properly served on the Government and weather the defendant were esstoped from raising the said objection? (3) Whether the plaintiffs were owners of the Shamilat in dispute and they were competent to sue? (4) Whether plaintiffs were only entitled to Guzran in the Shamilat in dispute of village Naryab and were not competent to sell it (any produce)? (5) Whether plaintiffs had a cause of action against the Government? (6) Whether plaintiffs were competent to cancel the condition of the Wajib -ul-Arz? (7) Relief."

4. During the course of the trial, death of a party took place and it was not substituted by the legal representatives whereupon on 31-1-1964 the Court held that the entire suit had abated. An appeal was preferred, which was allowed by the Additional District Judge on 18-7-1964 holding to the contrary, in view of the suit being representative both as regards the plaintiffs as well as the defendants. The suit was thereafter transferred for trial before the Additional District Judge who dismissed it on 10-6-1965. On firs appeal, the High Court remanded the case on 22-10-1974 with the direction to examine the Saddar Office Qanoongo as a witness in order to depose about the alteration in the Revenue record which had been made the basis of their claim by the plaintiffs. On remand, the suit was tried by the Senior Civil Judge and decreed on 24-7-1977. An appeal against the judgment and decree was dismissed by the District Judge on 12-7-1979. A Revision Petition was filed in which the Deputy Secretary, Board of Revenue was examined as a witness and thereafter the concurrent findings of two Courts were upheld and the revision dismissed.

5. Mr. S.M. Zafar, Senior Advocate, the learned counsel for the appellants contended that it is an established proposition of law that Wajibul Arz entries relate to custom, so far as entries in Rewaj-e-Aam are concerned and they also contain the agreement of the parties with regard to their proprietary interest in the village common land and other interests. With regard to customary rights, the recitals are generally requiring no such proof as do the entries relating to the agreements affecting title of the parties in land. Reliance for this is placed on Mst. Bhag Bhari etc. v. Mst. Bhagan and another (PLD 1954 Lahore 365) and Allah Dad v. Muhammad Ali and others (PLD 1956 Lah. 245).

6. The learned counsel for both the parties have relied on the decision in Whadera Allah Diwaya Khan v. The Custodian, Evacuee Property, West Pakistan, Lahore and others (PLD 1965 Lahore 535). According to the learned counsel for the appellants as the entries in the Revenue record are not backed by any evidence of agreement of the parties or their association and participation in the change, such entry had to be ignored and the previous entry had to be recognised and given effect to.

7. Raja Muhammad Anwar, Senior Advocate, the learned counsel for the contesting respondent on the other hand placed reliance on the settlement record of 1903-04 which entries have been consistently repeated upto date showing the rights of the parties in the property. The contention is that the subsequent record of rights has a presumption of correctness which has not been displaced and the subsequent settlement entries always prevail owner the earlier unless they are proved to be manifestly wrong or mistaken. He has placed reliance on Ghulam Rasul etc. v. Sardar Muhammad Ashraf Khan, etc. (PLD (Rev.) 1955 Punjab 56) and Mst. Allah Rakhi v. Murid Hussain Shah and others (PLD 1955 Baghdad-ul- Jadid 17) apart from the decision in the case of Whadera Allah Diwaya Khan (PLD 1965 Lah. 535).

8. It may be pointed out that this appeal had come up for hearing before another Bench on 12-5-1990 in the absence of the respondents who had failed to appear in spite of notice sent to them, and oral announcement of the order was made accepting the appeal. On going through the record of the case it was felt that important matters were left out from consideration during the hearing of the appeal and it was considered in the interest of justice to hear the matter again. It was in this background that the appeal was reheard and has come up for decision.

9. In the Record of Rights of village Naryab for the year 1877-78 (Exh.DA/1) the shamilat land has been described as hereunder:

10. In the Settlement of 1903-04, separate revenue estates and records of rights were prepared for the estates represented by the plaintiffs. The shamilat of Naryab was separated and parts of it allocated to these revenue estates making them in matters fiscal and land tenure somewhat autonomous. This was done in accordance with the procedure prescribed for making and attestation of such entries in the presence and with the participation of the right holders as is provided in paragraphs 292 to 297 of the Settlement Manual by Sir James M. Douie (sixth edition).

11. The reasons accounting for the change in Misle Haqiat of 1903-04 become clear on a close reading of the record. For example, the Misle Haqiat of village Naryab of the year 1877-78 mentions the following facts:

12. In the Misle Haqiat of 1903-04, there is mentioned an order of Settlement Officer dated 1-7-1903 for partitioning of the shamilat of these villages as hereunder:

13. Misle-Haqiat of Ghalu Chana for the Settlement year 1903-04 mention: as hereunder:

14. Misle Naqiat of Mir Kalay Khan for the same settlement year has the entry as hereunder:

15. These entries of the Misle Haqiat reproduced above clearly establish the following facts:

(i) The migratory population of the three revenue estates to which the plaintiffs belong had permanently settled in these estates between 1877 78 and 1903-04. (ii) There were disputes over the utilisation of the joint shamilat. (iii) The Settlement Officer passed an adjudicatory order whereby he directed the creation of three revenue estates out of the original revenue estate of Naryab. (iv) The creation of such revenue estates, the separation of shamilat of each and the recognition of rights therein had the consensus of those affected including the Lambardars. (v) Such a separation or division was never challenged till the question of distribution of price of mazri arose on 1957 or near about.

16. In the Privy Council's case of Dakas Khan and others v. Ghulam Kasim Khan and others (1978 (4S) Indian Cases 473) it was held that "A Record of Rights has been described by Sir Henry Maine as a detailed statement of all rights in land drawn up periodically by the functionaries employed in settling the claims of the Government to its shares of the rental ("Village Communities," page 72). He adds that-- The most important object of the Settlement operations--not second even to the adjustment of Government revenue is to construct a Record of Rights, which is a detailed register of all rights over the soil in the form in which they are believed to have existed on the eve of the conquest or annexation." The authority of such a document is universally recognised, and in Musammat Lali v. Murli Dhar (33 IA. 97 at p. 101; 8 Bom. L.R. 402; 3 A.L.J. 415; 10 C.W.N. 730; 3 C.L.J. 594; 28 A.488; 1 M.L.T. 171 (P.C.), it was said:

"The term Wajib-ul-arz in the North-Western Provinces is applied to what is considered to be the most important document contained in the official records relating to the village administration. Though it does not create a title, it gives rise to a presumption in its support, which prevails until its correctness is successfully impugned:"

17. The sanctity of the entries in the Wajib-ul-arz and the record-of-rights prepared at the time of settlement has been emphasized in Chhote Khan and others v. Mal Khan and others (AIR 1954 SC 575), Raja Rajinder Chand v. Mst. Sukhi and others the State of Punjab, Intervenor (AIR 1957 SC 286), Avadh Kishore Dass v. Ram Gopal and others (AIR 1979 SC 861) and in the decisions of the Lahore High Court referred to by the learned counsel for the parties.

18. The controversial entries of the Record of Rights of 1903 have their legal basis in the order of the Settlement Officer which has not been shown to be without jurisdiction or lawful authority. These altered entries had the implied approval of all those who were concerned with its veracity and correctness. This implied approval is inferred from the prescribed procedure under the law for making these alterations and attesting them. Also from the fact that these remained uncontested too long, in the circumstances, the conclusions drawn by all the three Courts, all in favour of the plaintiffs are not liable to be disturbed by such a late attack to the settlement entry of 1903-04 simply because an old product has acquired a new value for every one around.

19. One of the objections taken was with regard to the examination of a witness at the revisional stage. Not that the High Court is not possessed of that power to examine in exceptional cases a witness but in the case before us it appears that it had been done when both the parties had consented to it and had been given a fair opportunity of cross-examining and further examining the witness. Hence this objection is untenable.

20. We find no merit in this appeal and the same is dismissed with no order as to costs. AA./1561/S Appeal dismissed.